Citation NR: 9701359
Decision Date: 01/15/97 Archive Date: 02/03/97
DOCKET NO. 94-13 587 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for plantar warts with
callosities, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Salari, Associate Counsel
INTRODUCTION
The appellant served on active duty from August 1966 to
August 1968. This appeal comes before the Board of Veterans’
Appeals (Board) from a February 1993 rating decision, in
which the Chicago, Illinois, Regional Office (RO) of the
Department of Veterans Affairs (VA), granted a 10 percent
rating for the appellant’s plantar warts with callosities.
This case was later transferred to the St. Petersburg,
Florida, RO.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he experiences pain in his feet
and that he is entitled to an increased rating.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against his claim for an increased rating for
plantar warts with callosities.
FINDINGS OF FACT
1. All evidence necessary for the correct disposition of the
appellant’s claim has been developed.
2. No plantar warts are present; the appellant suffers from
callosities which cause pain, but there is no exudation or
constant itching, extensive lesions or marked disfigurement.
3. Neither an exceptional nor an unusual disability picture
has been demonstrated that would render impractical the
application of the regular schedular standards.
CONCLUSION OF LAW
The criteria for a rating higher than 10 percent are not met.
38 U.S.C.A. §§ 1155, 5107, 5110, (West 1991 & Supp. 1995);
38 C.F.R. §§ 3.321(b)(1), 4.20, 4.118, Part 4, Diagnostic
Codes 5284, 7806, 7812, 7819 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the appellant’s claim is
“well grounded” within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); that is, he has presented a claim that is
plausible. He has not alleged that any records of probative
value that may be obtained and which have not already been
associated with his claims folder are available.
Accordingly, the Board finds that all relevant facts have
been properly developed, and that the duty to assist him, as
mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been
satisfied.
Disability evaluations are based upon the average impairment
of earning capacity as contemplated by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1995);
38 C.F.R. Part 4 (1995). Although VA must consider the
entire record, the most pertinent evidence, because of
effective date law and regulations, is created in proximity
to the recent claim. 38 U.S.C.A. § 5110 (West 1991 & Supp.
1995).
VA utilizes a rating schedule which is used primarily as a
guide in the evaluation of disabilities resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The percentage ratings
represent, as far as can practicably be determined, the
average impairment in earning capacity resulting from such
diseases and injuries and their residual conditions in civil
occupations. Generally, the degrees of disability specified
are considered adequate to compensate for considerable loss
of working time from exacerbation’s or illnesses
proportionate to the severity of the several grades of
disability. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1995); 38
C.F.R. § 4.1 (1995). It is essential, both in the
examination and in the evaluation of disability, that each
disability be viewed in relation to its history. 38 C.F.R. §
4.1 (1995).
When an unlisted condition is encountered it will be
permissible to rate it under a closely related disease or
injury in which not only the functions affected, but the
anatomical localization and symptomatology are closely
analogous. 38 C.F.R.§ 4.20 (1995).
Service connection for bilateral plantar warts was granted by
means of a June 1971 rating decision, following review of the
evidence then of record, to include service medical records,
and a VA medical examination report, dated in March 1971.
The March 1971 VA medical examination report indicates that
the appellant complained of constant pain in the plantar
area. Examination of the feet revealed plantar warts covered
with callosities on both feet. A 10 percent rating was
granted under Diagnostic Code 7819 of the Schedule for
Ratings, 38 C.F.R. § 4.118.
A later VA examination, dated in March 1973, revealed no
plantar warts; however, there were callosities with clavi,
bilaterally. Subsequently, A rating decision, dated in April
1973, reduced the appellant’s disability rating to
noncompensable.
A VA medical examination report, dated in October 1992,
disclosed the presence of hyperkeratotic lesions under the
interphalangeal joint hallux and the metatarsal head, with
associated numbness, bilaterally. The examiner diagnosed the
appellant with pes planus with a hypermobile foot structure,
causing bilateral plantar hyperkeratoses. No plantar warts
were found. The RO, in accordance with the reasonable doubt
doctrine, increased the appellant’s disability rating to 10
percent by means of a February 1993 rating decision.
Subsequent VA medical records indicate that the appellant
suffered from vascular disease which lead to the amputation
of his right fifth toe and left leg, below the knee. This
matter is not on appeal and does not affect the findings of
the Board.
The VA Schedule for Rating Disabilities provide specific
Diagnostic Codes for rating Verruga peruana (7812) and Benign
skin growths (7819). Both criteria contemplate the existence
of scars and disfigurement. Code 7819 provides that unless
otherwise specified, the skin condition should be rated under
Code 7806 as for eczema, dependent upon the location, extent,
and repugnant or otherwise disabling manifestations.
38 C.F.R. § 4.118, Diagnostic Code 7819 (1995).
Under the relevant criteria provided by Diagnostic Code 7806,
in order to receive an increased rating of 30 percent, there
must be constant exudation or itching, extensive lesions, or
marked disfigurement. A 50 percent rating is warranted when
there is ulceration or extensive exfoliation or crusting, and
systemic or nervous manifestations, or if the skin disorder
is exceptionally repugnant. The Board notes that an
examination of the appellant’s feet in October 1992 revealed
hyperkeratotic lesions under the metatarsal head and the
interphalangeal joint on both feet. No warts were found at
that time and no scars were described. Having considered all
the medical evidence of record, as well as the appellant and
his representative’s contentions, the Board does not find
support for a rating higher than 10 percent as there is no
evidence of constant exudation or itching, extensive lesions,
or marked disfigurement.
Looking at other possible applicable criteria, the Board does
not find that an increased rating is warranted. Under
Diagnostic Code 5284, a 10 percent rating is provided for a
moderate foot injury and a 20 percent rating for a moderately
severe foot injury. In the absence of plantar warts and
notable callouses, the Board finds that the hyperkeratotic
lesions that have been medically described are rather minimal
and do not amount to a moderately severe foot injury.
The Board notes that the appellant’s representative has
invoked the application of the provisions of 38 C.F.R.
§ 3.321(b)(1) (1995). However, the representative has not
provided any supporting data as to why such application is
warranted in the case at hand. The Board does not find that
the evidence of record which pertains to the appellant’s
service connected disability presents such an exceptional or
unusual disability picture that would render impractical the
application of the regular schedular standards.
The Board also notes that the appellant’s representative has
invoked the application of the provisions of 38 C.F.R. § 4.40
(1995). However, this section provides for consideration of
functional impairment when evaluating the severity of a
musculoskeletal disability. The disability at issue in the
case at hand does not involve a musculoskeletal disorder, but
a skin disorder. As a result, the provisions of 38 C.F.R.
§ 4.40 are not applicable to the case at hand.
ORDER
An increased rating for plantar warts with callosities is
denied.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
The RO denied service connection for pes planus with hypermobile foot structure. The appellant has not
appealed that decision.
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